Jack v. Chapman

          MEMORANDUM OPINION

          ROBERT E. PAYNE SENIOR UNITED STATES DISTRICT JUDGE.

         James L. Jack, a Virginia inmate, has submitted this civil action under 42 U.S.C. § 1983. The matter is before the Court on Jack's failure to serve Defendant Rima, the Motion to Dismiss filed by Defendants Sean Dikeman and Joshua Lowden ("Defendants"), and the Court's obligations under 28 U.S.C. § 1915A, 42 U.S.C. § l997e(c). For the reasons stated below, the Motion to Dismiss will be granted and Jack's claims will be dismissed.

         I. FAILURE TO SERVE DEFENDANT RIMA

         Under Federal Rule of Civil Procedure 4(m), ^[1] Jack had 90 days to serve Defendants. Here, that period commenced on September 22, 2017. While the summons was returned as executed for Defendant Rima, Deputy Rima was not employed with the Loudoun County Sheriff's Office at that time and no one had the authority to accept service on behalf of a former employee. (See ECF No. 33, at 1-2.) Counsel for Defendants Dikeman and Lowden notified Jack of this fact in their submission to the Court on December 13, 2017. (See id.) More than 90 days elapsed and Jack had not served Defendant Rima. Accordingly, by Memorandum Order entered on March 2, 2018, the Court directed Jack, within eleven (11) days of the date of entry thereof, to show good cause why the action against Defendant Rima should not be dismissed without prejudice. Jack has responded, however, he fails to show good cause for his failure to serve Defendant Rima. (ECF No. 43.)

         Rule 4 (m) requires that, absent a showing of good cause, the Court must dismiss without prejudice any complaint in which the plaintiff fails to serve the defendant within the allotted 90-day period. Fed.R.Civ.P. 4(m). Courts within the Fourth Circuit found good cause to extend the ninety-day time period when the plaintiff has made "reasonable, diligent efforts to effect service on the defendant." Venable v. Dep't of Corr., No. 3:05cv821, 2007 WL 5145334, at *1 (E.D. Va. Feb. 7, 2007) (quoting Hammad v. Tate Access Floors, Inc., 31 F.Supp.2d 524, 528 (D. Md. 1999)). Jack makes no showing of good cause for his failure to serve Defendant Rima. Instead, Jack simply states that because he is proceeding in forma pauperis, the Court should "appoint a court investigator to help [Jack] find and serve Deputy Rima." (Response 1 (capitalization corrected).) Jack then briefly repeats his claims against Defendant Rima. Jack fails to provide any information demonstrating that he attempted to find an address for Defendant Rima after counsel for the remaining Defendants notified Jack that Defendant Rima had not been properly served. Neither Jack's incarceration nor his pro se status is sufficient to establish good cause. See, e.g., Hansan v. Fairfax Cty. Sch. Bd., 405 Fed.Appx. 793, 794 (4th Cir. 2010) (citing McNeil v. United States, 508 U.S. 106, 113 (1993)); Hogge v. Stephens, No. 3:09CV582, 2011 WL 4352268, at *2 (E.D. Va. Sept. 16, 2011) (concluding that incarceration is not good cause or excusable neglect justifying a delay in service of process) . Because Jack fails to show that he made reasonable and diligent efforts to effectuate service on Defendant Rima, his claims against Defendant Rima will be dismissed without prejudice.

         II. STANDARD OF REVIEW

         Pursuant to the Prison Litigation Reform Act ("PLRA") this Court must dismiss any action filed by a prisoner if the Court determines the action (1) "is frivolous" or (2) "fails to state a claim on which relief may be granted." 28 U.S.C. § 1915(e)(2); see 28 U.S.C. § 1915A. The first standard includes claims based upon "an indisputably meritless legal theory, " or claims where the "factual contentions are clearly baseless." Clay v. Yates, 809 F.Supp. 417, 427 (E.D. Va. 1992) (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)). The second standard is the familiar standard for a motion to dismiss under Fed.R.Civ.P. 12(b)(6).

         "A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990)). In considering a motion to dismiss for failure to state a claim, a plaintiff's well-pleaded allegations are taken as true and the complaint is viewed in the light most favorable to the plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993); see also Martin, 980 F.2d at 952. This principle applies only to factual allegations, however, and "a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

         The Federal Rules of Civil Procedure "require[ ] only 'a short and plain statement of the claim showing that the pleader is entitled to relief, ' in order to *give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (second alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Plaintiffs cannot satisfy this standard with complaints containing only "labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Id. (citations omitted). Instead, a plaintiff must allege facts sufficient "to raise a right to relief above the speculative level, " id. (citation omitted), stating a claim that is "plausible on its face, " rather than merely "conceivable." Id. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp., 550 U.S. at 556) . Therefore, in order for a claim or complaint to survive dismissal for failure to state a claim, the plaintiff must "allege facts sufficient to state all the elements of [his or] her claim." Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003) (citing Dickson v. Microsoft Corp., 309 F.3d 193, 213 (4th Cir. 2002); Iodice v. United States, 289 F.3d 270, 281 (4th Cir. 2002)).

         Lastly, while the Court liberally construes pro se complaints, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), it does not act as the inmate's advocate, sua sponte developing statutory and constitutional claims the inmate failed to clearly raise on the face of his complaint. See Brock v. Carroll, 107 F.3d 241, 243 (4th Cir. 1997) (Luttig, J., concurring); Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

         III. SUMMARY OF REMAINING CLAIMS

         By Memorandum Opinion and Order entered on August 30, 2017, the Court dismissed all claims and Defendants except for the claims against Defendants Dikeman, Lowden, and Rima. The remaining claims are as follows:^[2]

Claim One: Defendant Dikeman "violated a police order by placing allegations to a subject on the Internet, via Facebook, alleging a crime that had taken place in Leesburg, Va." (Part. Compl. 2, ECF No. 26.)

Claim Two: Defendants Dikeman and Lowden violated Jack's rights under the Fourth Amendment by arresting him and searching him "without a warrant, or probable cause." (Id.)

Claim Three: Defendants Dikeman and Lowden violated Jack's rights under the Fifth and Sixth Amendments by not providing Jack an opportunity to contact his attorney before interrogating him. (Id.)

Claim Four: Defendants Dikeman and Lowden violated Jack's rights under the Fourteenth Amendment^[3] by subjecting him to unnecessary use of force, which resulted in Jack's back injury. (Id.)

         Jack seeks compensatory and punitive damages. (Id. at 5.)

         IV. STATUTE OF LIMITATIONS

         Defendants first argue that Jack's claims are barred by the statute of limitations. Under 28 U.S.C. § 1915(e)(2), the Court must dismiss claims which the relevant statute of limitations clearly bars. Brown v. Harris, No. 3:10CV613, 2012 WL 12383, at *1 (E.D. Va. Jan. 3, 2012) (citing Eriline Co. S.A. v. Johnson, 440 F.3d 648, 655-57 (4th Cir. 2006); Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 955 (4th Cir. 1995)). Because no explicit statute of limitations for 42 U.S.C. § 1983 actions exists, the courts borrow the personal injury statute of limitations from the relevant state. Nasim, 64 F.3d at 955 (citing Wilson v. Garcia, 471 U.S. 261, 266-69 (1985)). Virginia applies a two-year statute of limitations to personal injury claims. See Va. Code Ann. § 8.01-243(A) (West 2018). Hence, Jack should have filed his complaint within two years from when the underlying claims accrued. “A claim accrues when the plaintiff becomes aware of his or her injury, United States v. Kubrick, 444 U.S. 111, 123 (1979), or when he or she 'is put on notice ... to make reasonable inquiry' as to whether a claim exists." Almond v. Sisk, No. 3:08cv138, 2009 WL 2424084, at *4 (E.D. Va. Aug. 6, 2009) (omission in original) (quoting Nasim, 64 F.3d at 955). Here, the record reflects that Jack's claims accrued on either May 7 or 8, 2014. (See Part. Compl. 2.) Jack filed the Complaint in this action on May 19, 2016.^[4]Thus, he is barred from bringing any claim that accrued prior to May 19, 2014. Although his claims accrued on May 7 or 8, 2014, Jack argues that he has a viable basis for tolling the statute of limitations.

         Jack argues that he initially filed the claims brought in this action in a prior case filed in this Court in 2014, making his claims timely filed. (Resp. Mot. Dismiss 2, ECF No. 40.) In response, Defendants argue that

Plaintiff's previously dismissed case does not change that Plaintiff filed the above-styled action on May 19, 2016, [] which is more than a year after his prior case was dismissed and (2) outside of the two-year limitations.[] Accordingly, at the time Plaintiff ...